Rashid Jeneby v Prime Bank Limited [2015] KEELRC 1101 (KLR)
The bottom line
#A Kenyan bank won on the reason for dismissal but lost the case because it failed to properly notify the employee of his disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for dismissal
The Respondent had a valid reason for terminating the Claimant's employment
The Claimant, as Operations Manager and second in command at the Branch, signed fraudulent vouchers and failed to verify staff transactions. Banking demands the highest degree of prudence and probity. It was not enough to trust subordinate staff; his prudence and attention to detail should have been commensurately high given the position held.
Procedural fairness of dismissal
The dismissal was procedurally unfair
The disciplinary hearing summons sent by registered post was not shown to have been received before the hearing date. The HR Manager could not explain why she did not call the Claimant despite the gravity of the charges. The Respondent's notification efforts were wanting, denying the Claimant an opportunity to defend himself.
Indefinite suspension on half pay
The 11-month suspension was an unfair labour practice and withholding half pay was unlawful
Suspension is a neutral action, not a disciplinary measure. Eleven months was inordinately long, following Cecilia Muthoni Njoroge v Nairobi Stock Exchange. No provision of the Respondent's HR Policy Manual supported withholding 50% of salary during suspension.
Respondent's counterclaim
Counterclaim dismissed for lack of specific evidence
The claimed loss of Kshs.4,143,537.45 overlapped with amounts admitted as owing by former employees charged with theft of Kshs.9,814,275.05. No evidence proved the claimed amount was not part of those sums. Special damages require specific proof.
Legal principles established
#- An employer bears the burden of demonstrating, on a balance of probability, a valid reason for termination under Section 43 of the Employment Act
- Prolonged suspension, especially on indefinite terms, acquires the character of disciplinary action without due process and constitutes an unfair labour practice
- The procedural fairness requirements of Section 41 of the Employment Act are mandatory even in cases of gross misconduct
- The employer is under a duty to ensure the employee is duly notified of the disciplinary hearing date and venue in good time
- A counterclaim for special damages requires specific evidence of the loss
Court orders
#- 1.Award of 6 months' salary (Kshs.1,200,000.00) in compensation for unfair termination
- 2.Award of 3 months' salary in lieu of notice (Kshs.600,000.00)
- 3.Award of 11 months' half pay salary withheld from 1.9.2010 to 30.7.2011 (Kshs.1,100,000.00)
- 4.Award of 20 days' leave pay (Kshs.133,333.00)
- 5.Total award of Kshs.3,033,333.00
- 6.Respondent directed to issue the Claimant with a certificate of service
- 7.Respondent to meet the costs of the case
- 8.Award to attract interest at court rates from the date of the award until payment in full
- 9.Respondent's counterclaim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Jeneby v Prime Bank Limited [2015] KEELRC 1101 (KLR)", Case Analysis (2015). Cause No 1156 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1101/eng@2015-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.